Hawthorne v Hillcoat - [2007] NSWSC 1018

CITATION: Hawthorne v Hillcoat [2007] NSWSC 1018
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29, 30, 31 January 2007; 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 21 February 2007, 7, 8, 9, 10 May 2007, 4, 5, 6 June 2007.

JUDGMENT DATE :
6 September 2007

JUDGMENT OF: Latham J

DECISION: 1. Judgment is entered for the Defendant; 2. Order for costs in the Defendant's favour; 3. I grant leave to apply within fourteen days from 6 September 2007

CATCHWORDS: Negligence - intoxicated plaintiff struck by defendant's vehicle whilst plaintiff standing in darkness in middle of road - whether speed excessive in circumstances and whether defendant failing to keep a proper look-out - defendant not negligent.

LEGISLATION CITED: Motor Accidents Act 1988

CASES CITED: Derrick v Cheung (2001) 181 ALR 301
Knight v Maclean [2002] NSWCA 314 [68]
South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113
Vairy v Wyong Shire Council (2005) 80 ALJR 1
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Manley v Alexander (2005) 80 ALJR 413
Evans v Lindsay [2006] NSWCCA 354

PARTIES: David Anthony Hawthorne - Plaintiff
Simmone Hillcoat - Defendant

FILE NUMBER(S): SC 20333/02

COUNSEL: M Joseph SC/ EG Romaniuk - Plaintiff
PJ Deakin QC/ R Weinstein - Defendant

SOLICITORS: Farrell Lusher - Plaintiff
Sparke Helmore - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

6 SEPTEMBER 2007

20333/2002

DAVID ANTHONY HAWTHORNE v SIMMONE HILLCOAT
JUDGMENT

Introduction

1 On 30 July 1999 the plaintiff and some work associates, including a Mr Gary Sanderson, went to the George IV Inn at Picton, where they drank a quantity of beer brewed on the premises, from about 8 p.m. to 11:30 p.m. The plaintiff, who was grossly intoxicated, and Mr Sanderson (also very intoxicated) left the hotel shortly after 11:30 p.m. and commenced to walk in a southerly direction in Argyle Street towards Tahmoor, where the plaintiff then lived. The plaintiff was wearing a blue check shirt and light blue denim jeans.

2 Within a relatively short distance of the hotel, the plaintiff and Mr Sanderson passed through a tunnel, known to locals as "the hole in the wall" because of its narrow and confined nature, and negotiated a sharp left-hand turn before ascending a relatively steep slope. It was necessary for them to walk on the roadway proper for some distance, given that there was no footpath on either side of the road for this part of their journey. Both men overlooked or ignored an alternative route, a pedestrian overpass, which was indicated by signage at the northern approach to the tunnel. A footpath commenced on both sides of Argyle Street, after passing through the tunnel, at about 70 metres south of the tunnel.

3 At about 12:20 a.m. on 31 July 1999, the defendant was driving her Mazda MX-5 sedan in Argyle…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hawthorne v Hillcoat

Details

AGLC: Hawthorne v Hillcoat [2007] NSWSC 1018
Case: [2007] NSWSC 1018
Decision Date: 6 September 2007

CaseChat Overview and Summary

The case of Hawthorne v Hillcoat involved a dispute where the plaintiff, who was intoxicated, was struck by a vehicle driven by the defendant while standing in the middle of the road in darkness. The plaintiff argued that the defendant's speed was excessive and that the defendant failed to keep a proper lookout, thereby being negligent. The court had to determine whether the defendant's actions constituted negligence under the circumstances presented.

The primary legal issues before the court were whether the defendant's speed was excessive, given the conditions of the road, and whether the defendant failed to maintain a proper lookout, thereby breaching their duty of care. The court needed to assess the reasonableness of the defendant's actions and whether these actions fell below the standard of care expected from a driver.

The court found that the defendant was not negligent. It concluded that the defendant's speed was reasonable in the given circumstances, considering the darkness and the plaintiff's unexpected presence in the road. The court further determined that the defendant had acted with due care by attempting to avoid the plaintiff despite the difficult conditions. The plaintiff's intoxication and actions in standing in the road contributed to the accident, and thus, the defendant was not held liable for negligence. The court dismissed the plaintiff's claim.

Orders